Helen Given V. James Watt College
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2006] CSOH 189 |
| Court | Court of Session |
| Published date | 13 December 2006 |
| Date | 13 December 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 189 | |
| OPINION OF LORD EMSLIE in the cause HELEN GIVEN Pursuer; against JAMES WATT COLLEGE Defenders: ________________ |
Pursuer: Lloyd; Thompsons
Defenders: Haldane; Dundas & Wilson CS
13 December 2006
Introduction
[1] On 30 May 2003 the pursuer had an accident at work. She was employed by the defenders as a kitchen assistant at their college in Greenock, and the main part of her job was to look after the lecturers whose room was adjacent to the main canteen. Shortly after she started work on the morning in question, something went wrong with the drinks dispensing machine from which she habitually obtained special orders or simply hot water for pots of tea or coffee. She was close by the machine at the time when it malfunctioned, and fell heavily to the floor, sustaining severe injuries to her right hip and right wrist.
[2] The pursuer now claims damages from the defenders as her employers, alleging both common law fault and breach of statutory duty on their part in respect of the condition of the machine. The defenders accept that the machine was prone to malfunctioning, and had been in that state for some time, but the parties remain in dispute as to (i) the precise circumstances in which the pursuer came to fall; (ii) the alleged liability of the defenders for her accident; (iii) the extent of any contributory fault on the part of the pursuer herself; and (iv) the assessment of certain heads of damages. A Proof Before Answer on these issues has now taken place before me.
The Accident
[3] In the witness box the pursuer explained how, when the machine started to malfunction, hissing loudly and emitting quantities of steam, she was asked by a fellow employee, Mrs Anne Lafferty, to move a special needs student out of the way in case she might be scalded. At the same time Mrs Lafferty called for help from Mrs Susan Turcosi, the kitchen assistant who generally looked after the machine and kept it operational. Having guided the student to safety, the pursuer returned to the vicinity of the machine. As she did so, she was adamant that the machine emitted a flash in her direction which she saw through a clear panel on its front face. Simultaneously, there may also have been a loud bang. This behaviour on the part of the machine gave the pursuer such a fright that she "jumped" or "leapt" back and somehow ended up falling heavily to the floor. When pressed in cross-examination on the circumstances of the accident, the pursuer continued to insist that it was an unexpected flash from the machine which frightened her and caused her to fall. She was, however, less certain as to whether the machine had also emitted any loud noise. As against that, her position was that the degree of hissing and steaming at that time was unprecedented, as (in her experience) was the flash which she saw from within.
[4] Although momentarily distracted after the machine began to malfunction, Mrs Lafferty gave direct evidence of seeing the pursuer "jump back" away from the machine before ending up on the floor. Another kitchen assistant, Mrs Elizabeth Purdy, agreed that the description in the defenders' accident report form (no.6/3 of process), to the effect that the pursuer "kind of leapt", was consistent with her impression at the time. Both of these witnesses thus gave some support to the pursuer's account of having fallen as a result of a fright, and in addition both spoke to a de recenti statement by the pursuer as she lay injured on the floor, along the lines that the machine had "flashed at her". Indeed Mrs Lafferty went on to say that she herself had seen a flash or flashes from the machine, and that this had frightened her (although she did not fall). Mrs Turcosi's account was broadly consistent with the others, except that she spoke positively to a loud bang from the machine at the time when the pursuer fell, and also to the pursuer stating, as she lay on the floor, that she had had a shock. At the time, Mrs Turcosi's impression was that the pursuer was talking about an electric shock of some kind, but in cross-examination she accepted that, by the word "shock", the pursuer might only have meant a fright.
[5] Unfortunately, neither side chose to explore the circumstances of the pursuer's fall in any greater detail. In particular the nature, colour, intensity and duration of any flash or flashes from the machine remained unexplored, as did the precise location from which any such flash may have emanated. No engineer was called to describe the physical configuration of the machine, nor to confirm the presence of a clear panel on its front face, nor indeed to identify the location of any of its electrical components which might be visible from outside. There was no direct evidence that anyone had ever seen flashing from the machine before, although there was some hearsay evidence to suggest that engineers had regularly blamed electrical circuit problems for the machine's propensity to overheat. Apart from that, the only evidence which I have to go on is that of the pursuer, Mrs Lafferty and Mrs Purdy, tending to indicate that a visible flash or flashes, with or without an accompanying bang, occurred at the material time.
[6] Equally unfortunately, neither side chose to explore in any detail the precise means by which the pursuer, starting from a stable upright position, contrived to fall really heavily on to her right hip and wrist. A slip, trip or collision in such circumstances might have made such a fall easier to understand, but there was no evidence of anything like that. When faced up with entries in the hospital records to the effect that she had slipped on the floor, the pursuer flatly denied that they could be correct, and the authors of these entries were not led to substantiate them. In any event, no evidence was led on either side to establish the condition of the floor or the nature of the pursuer's footwear. Once again, therefore, the final picture is of a rather unsatisfactory general nature, with the court being asked to draw the inference that, having jumped back in fright from the machine, the pursuer must somehow have lost her footing in a way that projected her heavily and awkwardly to the floor.
[7] Without the benefit of clearer and more positive vouching, I must confess to entertaining some doubts as to the inherent plausibility of the pursuer's account. Judged according to common experience, it is not easy to imagine how someone alarmed by a flash from inside a machine could have contrived to fall so badly. Mrs Lafferty did not fall, although frightened, and inevitably a question mark arises as to whether such a flash could truly have caused the pursuer's accident. In the end, however, I consider that it would be wrong for me to reject the pursuer's account on such subjective grounds. Nothing in the demeanour of the pursuer or of her supporting witnesses suggested that they had conspired together to provide the court with an entirely false account of what happened. In any event, I would be very slow to make any finding along such lines where (i) the allegation was not put to any of the individuals concerned; (ii) the account of a fright followed by an awkward fall appears to have been accepted by the defenders' manageress at the time (as reflected in the contemporaneous accident report form); and furthermore ( iii) there was no evidence which directly contradicted that account in any material respect. Truth is, as the saying goes, often stranger than fiction, and in the whole circumstances I am ultimately unable to say that the pursuer's account of the incident is either impossible, or so inherently improbable that it simply cannot be accepted. People do sometimes unaccountably lose their balance or footing in circumstances where they would not normally be expected to fall, and a sudden fright must obviously increase the risk of unexpected consequences.
[8] As regards the alleged flash from the machine, I am not prepared to hold the pursuer and Mrs Lafferty to be deliberately untruthful witnesses, and it seems unlikely that the pursuer's de recenti statements, as she lay injured on the floor, would have been a deliberate and dishonest fabrication. Given the machine's known faults, there would have been no need for her to invent new ones. It is true that the accident report form no. 6/3 of process compiled by the defenders' manageress, Miss Ritchie, within a short time of talking to the pursuer and others at the scene, contained no reference to a flash. However, during Miss Ritchie's evidence, it became clear that she did not have an opportunity to speak to Mrs Lafferty until some hours after the form was completed, and also that she did not speak to Mrs Purdy at all. Moreover, Miss Ritchie herself had largely assumed that the machine had "done its usual", and had little idea of precisely what others had told her. She really did not know what the "loud noise" was that she had recorded, nor could she could say whether the malfunction reported to her involved more hissing and steaming than on previous occasions. I therefore attach little importance to the fact that she did not recall the pursuer mentioning a flash at the time, or to her agreement in cross-examination that if a flash had been mentioned she would have recorded it.
[9] On the balance of probabilities, therefore, I am prepared to accept the pursuer's account of what happened to her as substantially accurate, and accordingly hold that her averments in that regard at page 6C of the Record have been established. Further considerations tending to support this conclusion are in my view the electrical faults which engineers apparently diagnosed at the time and in the past, coupled with the obvious risk of an electrical short circuit (and possible flash) in the presence of water or pressurised steam.
Common Law Fault
[10] In asking the court to find for the pursuer on this branch...
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